This is a bill brought in this court to extablish the title of the state of Louisiana to certain swamp lands which it claims under the statutes of the United States, and to enjoin the defendants against carrying out an order making a different disposition of the lands. The defendants demur on the grounds that this really is a suit against the United States, which has not consented to be sued, that the title never has passed from the United States, and that the remedy, if any, would be at law.

2

The act of March 2, 1849, chap. 87, 9 Stat. at L. 352, purported to grant to the state of Louisiana the whole of the swamp and overflowed lands therein, and provided that, on approval of a list of such lands by the Secretary of the Treasury (afterwards succeeded by the Secretary of the Interior), the fee simple to the same should vest in the state. Certain lands were excluded, but those in dispute were not by any express words. They belonged, however, to the Fort Sabine Military Reservation, established by the President on December 20, 1838, and although included in a list submitted under the statute, approval of the inclusion was suspended or denied. On March 25, 1871, the Fort Sabine Military Reservation was abandoned by Executive order, in pursuance of the act of February 24, 1871, chap. 68, 16 Stat. at L. 430, which authorized the Secretary of War to transfer it to the control of the Secretary of the Interior, to be sold for cash. On October 31, 1895, the Secretary of the Interior decided that the land was included in the grant of the act of 1849, subject to the right of the United States to use it for military purposes until abandoned. On December 10, 1895, pursuant to his decision, the Secretary indorsed upon a list of these lands that it was 'approved to the state of Louisiana under the act of Congress of March 2, 1849, as supplemented and enlarged by the act of Congress of September 28, 1850 (9 Stat. at L. 519, chap. 84), subject to any valid adverse rights that may exist.' The plaintiff says that thereupon the title passed.

3

On June 6, 1904, the Secretary of the Interior ordered that his predecessor's approval of the list be vacated, and that the lands should be held for disposition as provided by law, on the ground that they were not within the grant of the act of 1849, because at that time embraced in a military reservation. This decision has been upheld and finally affirmed by the present Secretary, the defendant in this case, and the result is the bringing of this bill.

4

We will assume, for purposes of decision, that, if the United States clearly had no title to the land in controversy, we should have jurisdiction to entertain this suit, for we are of opinion that, even on that assumption, the bill must be dismissed. But before giving the reasons for our opinion, the course taken by the argument for the United States makes it proper to state a portion of that argument that does not command our assent.

5

The next year after the act of 1849, another act was passed, which granted swamp lands to the state of Arkansas. It provided for a list, required the Secretary of the Interior to issue a patent for the lands at the request of the governor, and then enacted that, 'on that patent,' the fee simple to the lands should vest in the state. The 4th section was more general: 'That the provisions of this act be extended to, and their benefits be conferred upon, each of the other states of the Union in which such swamp and overflowed lands, known as designated as aforesaid, may be situated.' Act of September 28, 1850, chap. 84, 9 Stat. at L. 519. It is argued that this so far repealed the special act of 1849 that thereafter the title would not pass on simple approval, as provided therein, but a patent was necessary. As we understand, the continuous construction of the Department has been to the contrary, and a great number of titles to a very large amount of land would be disturbed if we should accede to this argument. We see no reason for overthrowing the long-continued understanding that the special provisions for Louisiana were not affected by a general clause, evidently intended to extend benefits to states that did not enjoy them at the time, not to change the mode of conveyance previously established in a case where the benefit already had been conferred. We may add that we assume that, if approval was sufficient to pass the title, the form of words used by the Secretary of the Interior on December 10, 1895, had that effect, notwithstanding the reference to the act of 1850, whatever may have been his understanding or intent.

6

A further argument was presented that, if a patent was not necessary under the act of 1850, then a certificate by the Land Commissioner was made so by the act of August 3, 1854 (10 Stat. at L. 346, chap. 201, Rev. Stat. § 2449, U. S. Comp. Stat. 1901, p. 1516). But that law does not require so extended an application. We shall assume, for purposes of decision, that it is satisfied if confined according to its words to lands to which the act of 1849 did not purport 'to convey the fee-simple title.'

7

Leaving the foregoing arguments on one side, we nevertheless are of opinion that the bill must fail. The land in controversy had been withdrawn from the public domain by reservation at the time when the act of 1849 was passed, and the general words of that act must be read as subject to an implied exception, under the rule laid down in Scott v. Carew, 196 U. S. 100, 109, 49 L. ed. 403, 405, 25 Sup. Ct. Rep. 193, and the earlier cases there cited. The case is not one where the approval proceeded upon a mistake of fact with regard to a matter on which it was necessary that the Secretary should pass. See Noble v. Union River Logging R. Co. 147 U. S. 165, 173, 174, 37 L. ed. 123, 126, 127, 13 Sup. Ct. Rep. 271. The approval proceeded upon a manifest mistake of law; that upon the abandonment of the military reservation the land fell within the terms of the grant of 1849. Therefore it was void upon its face. The only doubt is raised by the statute limiting suits by the United States to vacate patents to five years. Act of March 3, 1891, chap. 561, § 8, 26 Stat. at L. 1099. It may be that this act applies to approvals when they are given the effect of patents as well as to patents, which alone are named. In United States v. Chandler-Dunbar Water Power Co. 209 U. S. 447, 52 L. ed. 881, 28 Sup. Ct. Rep. 579, it was decided that this act applied to patents even if void because of a previous reservation of the land, and it was said that the statute not merely took away the remedy, but validated the patent. The doubt is whether Louisiana has not now a good title by the lapse of five years since the approval and by the operation of that act.

8

But that doubt cannot be resolved in this case. It raises questions of law and of fact upon which the United States would have to be heard. The United States fairly might argue that the statute of limitations was confined to patents, or was excluded by the act of 1871. If it yielded those points it still reasonably might maintain that a title could not be acquired under the statute by a mere void approval on paper, if the United States ever since had been in possession, claiming title, as it claimed it earlier by the act of 1871. It might argue that, for equitable relief on the ground of title in the plaintiff, in the teeth of the last-named act, it would be necessary at least to allege that the state took and has held possession under the void grant. The United States might, and undoubtedly would, deny the fact of such possession, and that fact cannot be tried behind its back. It follows that the United States is a necessary party and that we have no jurisdiction of this suit.